Marcus Booker Collins v. Commonwealth

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judge Annunziata and Senior Judge Hodges Argued at Richmond, Virginia

MARCUS BOOKER COLLINS

v. Record No. 1456-94-1 MEMORANDUM OPINION * BY CHIEF JUDGE NORMAN K. MOON COMMONWEALTH OF VIRGINIA JULY 18, 1995

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK William F. Rutherford, Judge Michael J. Woods (Wilcox & Woods, P.C., on brief), for appellant.

Monica S. McElyea, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Marcus Booker Collins appeals his conviction of distributing

cocaine in violation of Code § 18.2-248. Collins contends that

his mere presence at the scene where drugs were distributed to an

undercover narcotics detective was insufficient to convict him as

a matter of law. Because the Commonwealth's evidence showed

circumstances linking Collins to the distribution of the cocaine,

other than his presence at the scene of the drug sale, we hold

the evidence was sufficient to convict Collins and affirm the

trial court's decision.

"Circumstantial evidence is as competent and is entitled to

as much weight as direct evidence, provided it is sufficiently

convincing to exclude every reasonable hypothesis except that of

guilt." Coleman v. Commonwealth, 226 Va. 31, 53, 307 S.E.2d 864, * Pursuant to Code § 17-116.010 this opinion is not designated for publication. 876 (1983). While the circumstances of time, place, motive,

means and conduct must concur in pointing to the defendant's

guilt beyond a reasonable doubt, not all of the circumstances

must be individually proved beyond a reasonable doubt. Cantrell

v. Commonwealth, 229 Va. 387, 397, 329 S.E.2d 22, 29 (1985).

Inferences to be drawn from the proved facts are within the

province of the fact finder so long as the inferences are

reasonable and justified. Person v. Commonwealth, 10 Va. App.

36, 39, 389 S.E.2d 907, 909 (1990). Further, the credibility of

witnesses and the weight assigned their testimony are matters

exclusively for the fact finder. Lea v. Commonwealth, 16 Va.

App. 300, 304, 429 S.E.2d 477, 479 (1993).

This Court has recognized that "[i]t cannot be reasonably

inferred from the mere presence of the defendant at a street

intersection and the intersection's reputation as a place for

trafficking in drugs that [defendant] was engaged in the illegal

activity of drug distribution." Riley v. Commonwealth, 13 Va.

App. 494, 498, 412 S.E.2d 724, 726-27 (1992); Brown v. Commonwealth, 15 Va. App. 232, 234, 421 S.E.2d 911, 912 (1992)

(citing Smith v. Commonwealth, 217 Va. 336, 337, 228 S.E.2d 562

(1976)). However, we have also noted that where there is other

evidence of criminal conduct in addition to the defendant's

presence in an area reputed for drug activity, the defendant's

presence in such place is probative of his involvement in the

distribution of drugs. Brown, 15 Va. App. at 234, 421 S.E.2d at

913; see also Coe v. Commonwealth, 231 Va. App. 83, 89, 340

- 2 - S.E.2d 820, 823 (1986).

In this case, the trial judge could have inferred from the

Commonwealth's circumstantial evidence that Collins was involved

in the distribution of cocaine in the location where the

undercover narcotics officers believed cocaine was being sold.

That evidence showed that Collins, who was with three other men,

used a common hand signal among street drug dealers to attract

the undercover officer's attention and let him know that he had

drugs for sale. In response, the officer made the same gesture,

stopped his car, rolled down his window, and asked them if they

had any drugs. Collins then motioned for the undercover officer

to get off the street and pull into a parking lot. When one of

the other men sold cocaine to the officer in response to the

officer's request, Collins was standing shoulder to shoulder with

the man at the officer's car. Upon being arrested, Collins was

found to be holding two large stashes of cash in his pants

pockets. A trained drug screening dog later indicated the

presence of cocaine residue on the cash discovered on Collins. The trial judge believed the testimony of the undercover

narcotics officer and did not believe appellant's testimony that

he only approached the officer's car to get a ride or use his car

for transportation. Viewing the evidence, as we must, in the

light most favorable to the Commonwealth, Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987), we hold the

evidence was sufficient to convict Collins. Affirmed.

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